Over the past year, the world learned that the National Security Agency (NSA) engages in costly, ineffective, mass surveillance collecting both metadata and content of communications of hundreds of millions of innocent people, including Americans. Thanks to whistleblower Edward Snowden and the aggressive, responsible investigative journalism from Glenn Greenwald, the public learned last night that who the NSA targets for surveillance is driven by First Amendment-protected activities of speech, association, and religious practice.
The National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans—including a political candidate and several civil rights activists, academics, and lawyers—under secretive procedures intended to target terrorists and foreign spies.
According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:
• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.
(emphasis added)
Harkening back to its domestic spying roots of spying on civil rights leaders, the FBI and NSA have been specifically targeting people for surveillance based on their race, religion and constitutionally-protected speech. To put it more bluntly, would we be more outraged at the surveillance of a non-profit director, professors and civil rights leader if they were the Executive Director of NAACP or AIPAC or Professor Obama (back when he taught - and respected - Constitutional Law)?
As a non-profit attorney representing whistleblowers the government has accused of violating the Espionage Act and being enemies of the state, I am particularly sensitive to the government's targeting of attorneys based on their controversial clients. And, I have electronic and social media connections to some of the five people NSA is targeting. According to the Obama-endorsed contact-chaining, "about" collection, and "two hops" theories, my communications could be swept up as well.
There is no reason the public should believe any of the intelligence community's denials about NSA surveillance. Senior officials have lost all credibility as a result of the decade-long pattern of deception and fear-mongering aimed at misleading the public about the scope of surveillance so that NSA would have enough buy-in from the public and Congress to continue its invasive spying. Still, these new revelations make previous assurances about respecting the attorney-client privilege ring especially hollow:
In a 2008 article that featured Ghafoor’s case, a Justice Department official told the Times that the government does not specifically target attorneys. “It’s not as if we’re targeting the lawyer for surveillance,” the official said. “It’s not like we’re eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up.”
Last February, in response to revelations that the NSA had monitored the communications of a U.S. law firm representing the government of Indonesia, then-NSA chief Keith Alexander assured the American Bar Association that the “NSA has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications acquired during its lawful foreign intelligence mission.”
Now we learn that not only is the NSA collecting attorney-client privileged communications, but spying on someone specifically because of his attorney-client relationships. The fact is, the NSA does not have a carve-out for doctor-patient, attorney-client, or any other legally-protected privilege.
The incredible stories of the past week that NSA targets individuals based on their religion, association and speech and that NSA collects more communications of innocents than targets demonstrate that despite NSA's noisy but spurious denials, NSA's goal is not to respect privacy. Rather, in NSA's words, the goal is to “Collect it All,” “Process it All,” “Exploit it All,” “Partner it All,” “Sniff it All” and “Know it All.” While innate to dictatorships, such a goal is antithetical to democracy, where the people should know more about their government than the government knows about the people.
